Mining: Yukon court decision on claim staking will impact B.C.

Aboriginals must be consulted if development will adversely affect title, rights

Online staking with the click of a mouse and a credit card has led to a dramatic increase in staked claims and exploration in B.C.

Photograph by: David Sidaway
, Montreal Gazette

B.C. laws that allow mining claims to be staked online with a credit card — but without consulting aboriginals — are likely to be rewritten in response to a Yukon Court of Appeal decision, the West Coast Environmental Law group says.

Staff lawyer Andrew Gage on Monday called the Yukon decision “hugely significant” and urged the B.C. government to take notice or face the prospect of more litigation with the same results in this province.

The Ross River Dena Council had argued that the Yukon government’s system for granting mineral rights did not comply with a Supreme Court of Canada decision in 2004 (involving the Haida and B.C. forests ministry), which found natives must be consulted and, as appropriate, accommodated for activities on Crown land that may affect their interests.

In a unanimous decision this past December, the Yukon appeal court agreed with the natives, saying: “Where the granting of a mining claim or the working of that claim will have serious adverse effects on a credible claim to aboriginal title or rights, the government must provide for consultation before the mining claim is granted or the work is commenced.

“It must also maintain the ability to prevent or regulate activities where it is appropriate to do so.”

Zoë Younger, vice-president of corporate affairs for the Mining Association of B.C., said the organization is looking at how the Yukon decision may affect mining in B.C., but said it reinforces the importance of governments, natives and industry working together on a common solution.

“In B.C., there is not an automatic approval of activity that goes with the staking of a claim,” she added, noting the level of consultation depends on the specific project and how invasive it might be. “We have different trigger points and thresholds.”

Gavin Dirom, president of the Association for Mineral Exploration B.C., refused to comment Monday on the decision. The Yukon government has not yet announced whether it will appeal. B.C. recorded mineral exploration expenditures of $463 million in 2011, he noted.

Dave Porter, chief executive officer of the B.C. First Nations Energy and Mining Council, said in a statement that “the B.C. government and mining industry have been given a blaring wake-up call” and should now sit down with natives to find a better solution.

“For decades, the claims process has been at the root of mining confrontation in B.C., and with this ruling it is in no one’s interest to delay reform any longer,” Porter said.

The B.C. government did not immediately comment on the implications of the Yukon decision.

The Yukon court noted that under the Quartz Mining Act, an individual can acquire mineral rights simply by physically staking a claim and then recording it with the Mining Recorder.

Once a claim is recorded, the miner is entitled to the minerals within the claim, and may conduct certain exploration activities on the land without further authorization and without notice to the government, the ruling stated. The court gave the Yukon government one year to fix the problem, noting any new “regime must allow for an appropriate level of consultation before aboriginal claims are adversely affected.”

Gage and West Coast’s executive director Jessica Clogg, in a joint posting on the group’s website, stated that the decision essentially means that the “free-entry system” of allocating mineral rights that is central to mining law in much of Canada is inconsistent with the Crown’s obligation to First Nations on decisions affecting their aboriginal title and rights.

They note that the three judges who heard the Yukon case (David Tysoe, Christopher Hinkson and Harvey Groberman) sit on the B.C. Court of Appeal, meaning they could rule similarly in any separate B.C. case.

Gage and Clogg said that conflict over mineral staking in B.C. has been on the rise since 2005, when amendments to the Mineral Tenure Act began to permit online staking with the click of a mouse and a credit card.

“The result was a dramatic increase in the number of claims staked and exploration activity in B.C.,” they said.

B.C.’s Mineral Exploration and Mining Strategy of 2012 states: “The Crown has a duty to consult and, where appropriate, accommodate First Nations on decisions that may affect aboriginal rights or title. This includes decisions on mineral development.”

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